#### JANE JORDAN v. GEORGE D. MILLER.

(Filed 20 December, 1919.)

Negligence — Lessor and Lessee — Employer and Employee — Master and Servant — Contributory Negligence — Evidence—Nonsuit.

Ordinarily a lessor is not liable to an employee or guest of bis lessee for a personal injury caused by bis failure to repair a defective place in tbe leased premises, tbougb under contract witb his tenant to repair; and where tbe employee was injured by stepping through a hole in a platform to an outside stairway, of which said employee was aware and had frequently theretofore stepped over, it is evidence of contributory negligence which will bar her recovery of damages in her action. And, semble, the court would have been justified in directing ‘a nonsuit under the evidence in this case.

Appeal by plaintiff from Ray, <T., at March Term, 1919, of Buncombe.

This is an action for damages for personal injuries sustained by the plaintiff, an employee of the lessee of the defendant. The jury found *74on tbe issues submitted that the defendant was not guilty of negligence, and that plaintiff contributed to her injuries by her own negligence. Appeal by plaintiff.

F. W. Thomas and R. M. Wells for plaintiff.

M. W. Brown for defendant.

Clark, C. J.

In December, 1915, the premises in question were leased by George D. Miller to Tempe Harris for a residence and boardinghouse, and she employed the plaintiff as a cook. The defendant was given a bedroom, which she reached by passing over a platform in which there was a hole three feet long and four inches wide, which had been made in September, 1917, by another employee of Mr. Harris, and plaintiff was injured by stepping into this hole in the month following.

As to the accident, the plaintiff testified as follows: “On 3 October, 1917, said platform and railing around the same was out of repair and in said platform near the door to her sleeping room was a hole; that she knew that said hole was in the platform, having stepped over and dodged it at least twice every day for five days before she received her injuries, and that at the time she was injured she knew where the hole was and intended to step across the hole, but misjudged its location and put her foot into it, causing her to fall, and that she was thereby injured.”

By the terms of the lease, the lessor was to attend to all necessary outside repairs, but the lessee agreed to make all inside repairs during the life of the lease. It would seem that this was a defective place in a platform of an outside staircase leading to plaintiff’s room. The tenant, Miss Harris, knew that her employee, Elliott,' had broken the plank and made the hole, and that a plank 3 feet long and 4 inches wide would have put the platform in repair.

“As a general rule, the landlord is not liable for injuries to third persons on account of the defective repair of premises.” 18 A. and E., 238.

In the absence of an agreement as to repairs, it is familiar learning that it is not the duty of the lessor to keep the building in repair. Improvement Co. v. Coley-Barden, 156 N. C., 255. There was evidence from the plaintiff’s statement that she knew of this broken place in the platform and notwithstanding stepped into the hole. The jury found upon the issues submitted that she was not injured by the negligence of the lessor, but that she was injured by her own negligence. There was evidence to that effect sufficient to go to the jury, and they have so found the fact to be.

The court charged the jury that “the mere fact that the plaintiff knew that there was a hole in the platform at the place where she testified that her leg went through, does not make her guilty of contributory negli-*75genee. It is for tbe jury to say, on tbe whole evidence, wbetber or not tbe plaintiff was negligent, and if tbey should find that she was negligent, still tbey should answer tbe second issue No,’ if tbey should find that tbe negligence of tbe defendant was tbe proximate cause of tbe plaintiff’s injury.”

In 24 Cyc., 1119, it is said: “Tbe general rule is that a subtenant, guest, or servant of tbe tenant is regarded as so far identified with tbe tenant that bis right to recover against tbe landlord is tbe same as tbe tenant’s right would be bad tbe accident happened to him; but be can have no greater claim against tbe landlord than tbe tenant himself would have under like circumstances.”

Even where tbe lessor contracts to keep tbe premises in repair, “It has been held, with but few exceptions, that tbe breach by tbe landlord of bis contract to repair tbe demised premises will not ordinarily entitle tbe tenant, bis family, servants, or guests, personally injured from a defect therein, existing because of tbe negligence of tbe landlord in failing to comply with bis agreement to repair, to recover indemnity for such injury, wbetber in contract or tort, since such damages are too remote, and cannot be said to be fairly within tbe contemplation of tbe parties. A contract to repair does not contemplate as damages for tbe failure to perform it that any liability for personal injuries shall grow out of tbe defective condition of tbe premises; because the duty of the tenant, if the landlord fails to perform his contract to repair, is to do the work himself, and recover tbe cost in an action for that purpose, or upon a counterclaim in an action for rent, or if tbe premises are made untenable by reason of tbe breach of contract, tbe tenant may move out and défend in an action for rent as upon an eviction. In accordance with this view, in order to recover damages for personal injuries, there must be shown some clear act of negligence or misfeasance on tbe part of tbe landlord beyond tbe mere breach of covenant.” 16 Euling Case Law, 1095.

It may be that upon tbe principles and authorities above cited, tbe court might have directed a nonsuit. But, however that may be, tbe jury, upon instructions free from error, have found upon evidence that tbe proximate cause of plaintiff’s injuries was her own negligence.

No error.